Pharmacy Pays Dearly After Misleading Court

MARCH 01, 2003

Larry M. Simonsmeier, JD, RPh

Issue of the Case:The Mississippi Supreme Court was asked to determine whether a jury verdict in favor of the defendant pharmacy should be overturned because the pharmacy was guilty of misleading the plaintiff and the court.

Facts of the Case:The plaintiff alleged that the defendant pharmacist and pharmacy erroneously filled his prescriptions by dispensing antidepressants instead of the prescribed hypertension and heart medications. As a result, it was claimed that the plaintiff?s blood pressure was elevated, resulting in a stroke that caused him to be permanently disabled.

The jury found in favor of the defendants. This appeal, however, did not concern the issue of whether the pharmacist or pharmacy did, in fact, negligently misfill the prescriptions. Rather, this case examines whether the defendants failed to produce evidence in a timely fashion and intentionally misled the plaintiff about the amount of insurance coverage.

The plaintiff alleged that the pharmacy deliberately withheld information concerning the limits of its liability insurance coverage. This perpetuated the plaintiff?s belief that the policy coverage was $1 million when, in fact, it was in excess of $30 million. This revelation came about only during an examination of the pharmacy?s files by the trial judge.

Second, and more importantly, the pharmacy did not produce any evidence of prior claims of negligence until the fourth day of the trial, despite repeated orders from the judge to make the documents available during the discovery phase.

After the jury returned its verdict for the defendants, the plaintiff filed a motion for a judgment notwithstanding the verdict, a motion for a new trial, and a motion for sanctions.

The Court?s Ruling:The court set aside the jury verdict, granted a new trial against the defendants, and awarded attorneys? fees to the plaintiff as sanctions for the defendant?s misconduct.

The Court?s Reasoning:There was no question that the pharmacy disobeyed the court?s order to produce information during discovery. The pharmacy blamed the insurance company, and the insurance company pointed at the pharmacy, but the court found that there was no excuse for the failure to disclose the information because of the very close relationship between the 2 entities. The testimony of the employees revealed an attitude that the pharmacy was in ?the business of producing sales and not producing discovery.?

The failure to furnish the policies was found to be especially serious because the defendants were aware that the plaintiff?s attorneys had received a copy of the $1-million primary policy and relied on that information in making settlement offers. It was quite clear at all times that the defendants knew that not a single policy but several policies were in existence.

Furthermore, the failure to furnish information about past dispensing errors during the discovery process clearly deprived the plaintiff of the opportunity to evaluate and develop his own case. This caused the court to grant the motion for a new trial and also to warrant that sanctions be imposed on the defendants. The court ruled that the sanctions, including $51,000 in attorneys? fees, must fall at the feet of the pharmacy and not the pharmacist because he did not actively participate in the withholding of the information.

Therefore, a judgment on liability was entered against the pharmacy, and a new trial was ordered on the issues of damages only. The pharmacist also was ordered to face a new trial to determine whether he, too, was liable and should pay damages. The sanctions of more than $50,000 for misconduct during the discovery process were ordered to be paid to the plaintiff, no matter what the outcome of the new trial.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.